Herron v Wallace

[2016] NZHC 2789

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1806 [2016] NZHC 2789

BETWEEN

STUART WALTON HERRON

Plaintiff

AND

WAYNE ANDREW WALLACE First Defendant

SHADES OF AUTUMN LIMITED Second Defendant

BELMONT LIFESTYLE VILLAGE LIMITED

Third Defendant

Hearing:	On the papers
Counsel:	CT Patterson and RA Dellow for plaintiff JWJ Graham and CF Fife for defendants
Judgment:	22 November 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 22 November 2016 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Skeates Law, Auckland (G Skeates) Chapman Tripp, Auckland

Herron v Wallace [2016] NZHC 2789 [22 November 2016]

[1]      On 19 November 2015 I made orders on the defendants’ application for leave to amend the third statement of defence. Among the orders I made was an order that the  defendants  pay  costs  on  the  application  based  on  Category  2  Band B  and disbursements  as  fixed  by  the  Registrar.    This  was  despite  the  fact  that  the application by the defendants was granted.

[2]      Counsel have been unable to agree on the precise quantification of the order which must be sealed. They have sought my ruling.

[3]      The   position   has   been   helpfully  summarised   by  counsel   in   a   joint memorandum to the Court which was emailed to the Court on 15 November 2016. That memorandum sets out the background and identifies two issues relating to costs and one relating to a disbursement which are in dispute.  This judgment therefore rules on the disputed matters.

[4]     The first item in dispute refers to the plaintiff’s claim in respect of a memorandum filed on 1 October 2015.  In that memorandum the plaintiff sought an extension of time.  Be that as it may, I regard the memorandum as a matter which related to the amendment application and therefore is covered by the order for costs that  I  have  made.  The  result  is  that  there  should  be  an  allowance  for  the memorandum filed on 1 October 2015 in the sum of $897 in the order which is to be sealed.

[5]      The second disputed item relates to the plaintiff’s claim for a certificate for second  counsel  in  respect  of the  amendment  application.    I did  not  grant  such certificate at the time.  I am not satisfied that what amounts to an amendment of the order I made is justified at this time.  Accordingly, I rule that no certificate will be given in respect of second counsel in respect of the amendment application.

[6]      The next matter that counsel have sought a ruling from me relates to the claim  for  disbursements.     The  order  I  made  required  the  Registrar  to  fix disbursements and was made in reliance on r 14.12(4).  The disbursements claimed are $92 and $230 respectively and are for “research NZLS Library on leave application”.   I am satisfied, in view of the amounts of the claim and the need to

have this matter finalised that I should specifically direct what should be allowed in relation to these items, so that the order can be served without further delay.  I regard both the search items as being part of practice overheads.  They must be absorbed by the plaintiff’s solicitors.  They are not separately recoverable in the cost order that I made against the defendants.

[7]      The orders made in this judgment will enable the plaintiff to seal the cost order made on 19 November making adjustments as I have indicated to the schedule

attached to the draft order.

JA Faire J